The Value of the Right to Exclude: An Empirical Assessment
University of Pennsylvania Law Review , Volume 165 - Issue 4 p. 917- 966
Property theorists have long deemed the right to exclude as fundamental and
essential for the efficient use and allocation of property. Recently, however, proponents
of the progressive property movement have called into question the centrality of the
right to exclude, suggesting that it should be scaled back to allow the advancement of
more socially beneficial uses of property. Surprisingly, the debate between the proponents
and detractors of the right to exclude is devoid of any empirical evidence. The actual
value of the right to exclude remains unknown.
In this Article, we set out to fill this void by measuring, for the first time, the value of the right to exclude. To that end, we use the passage of the Countryside and Rights of Way Act of England and Wales in 2000 as a natural experiment to provide empirical insight into this issue. We show that the Act’s passage led to statistically significant and substantively large declines in property values in areas of England and Wales that were more intensively affected by the Act relative to areas where less land was designated for increased access. While property prices might not capture all social value, our findings provide a critical input to the debate regarding access to private property. Given that the access rights provided by the “right to roam” included in the Act represent seemingly minimal intrusions on private property, our findings indicate that property owners view even small restrictions on their right to exclude very negatively.
We believe that our findings are of significant importance to lawmakers in the United States, as they provide an empirical basis for policymaking in the realms of property and land use. In the United States, private property rights enjoy constitutional protection under the Takings Clause of the Fifth Amendment. Hence, any attempt to formalize a general right to roam or other intrusions on the right to exclude may require the government to pay just compensation to affected property owners. Our study suggests what the just compensation amounts are likely to be. This information would allow lawmakers to make better decisions about the social desirability of various land use measures. We would like to emphasize that our findings should not be read as a call against the adoption of a right to roam or any other public privilege. Our only goal is to furnish a needed empirical foundation that would permit lawmakers to conduct a more precise cost–benefit analysis of different policies.
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Klick, J.M, & Parchomovsky, G. (2017). The Value of the Right to Exclude: An Empirical Assessment. University of Pennsylvania Law Review, 165(4), 917–966. Retrieved from http://hdl.handle.net/1765/106882